Trademark and domain names

The basic structure of internet is Internet Protocol which is used for computer server communication in the
numeric form and known as IP address in common parlance. Since these numeric IP addresses are difficult to
remember Introduction of domain names have played a great role as corporate asset. Thus, a domain name is an
easy alternative for all numeric IP addresses and is known as the 'Domain Name System'.

Domain is a part of the Cyberspace which is a virtual world, which exists only in Computer memory. The
advent of trademark can be traced back to the beginning of the trade itself. Due to human activities the
manufacturers have started differentiating their goods from others; the manufacturers started symbolizing their
goods with marks and logos. Now in today's time where people have less time to scrutinize a product/ goods the
trademark helps them to go for the best buy at cheaper rate by comparatively spending lesser time. Thus in this era
of information technology it becomes important to address this issue of online infringement of trademark with
utmost care and approach towards the correct solution and application of law for such protection

A domain name is part of the address and location of a site on the internet. While trademark have been
around for a long time, domain names are comparatively a recent phenomenon attracting public attention.

Disputes over ownership of the domain names have arisen for a number of reasons. The domain name has
been considered as similar to a trademark. Therefore those who own the mark for the no-internet business wish to
use the same on the internet; it is seen as a valuable addition to the branding of goods or services as a whole.
Trademark law is territorial whereas internet is global. Therefore, different business trading under the same mark in
various parts of the world may have what they consider to be the same legal claim to a particular domain name, as
no domain name can be identical therefore only business house can have a particular name.

Domain Name Assignment Procedure

For the registration of domain name, a request is made to the organization having power to allocate the
domain names. Before 1999 a company known as Network Solutions Inc. (NSI) was the only organization for the
registration of the domain name under .com, . net, .org etc. To avoid arbitration between two parties who choose the
same domain name, NSI decided to simplify the procedure by applying a first come, first serve arrangement with
respect to allotment of such overlapping domain names. In this simple procedure introduced by NSI, there are no
reasoning questions on applicant's right to adopt that particular domain name; rather they would simply allot the
requested domain name if available with the organization.

Under this liberal policy, NSI created a procedure under which a third party can challenge the right of a
domain name owner to use a particular domain name. If the challenge were successful, the domain names would be
suspended. This policy only protected parties that had a nationally registered trademark identical to another party's
domain name. An owner of unregistered trademark could not initiate an action under this policy, nor could an owner
of a trademark that was confusingly similar (but not identical). Now the registrar of domain names are accredited by
the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit corporation formed specifically
to control Internet Domain name management and similar functions. NSI continues to assign domain names, but
now they are just one many domain name registrar.

Available Remedies

Initially the domain name disputes in United States were decided through Courts by applying three primary
trademark laws.

 Firstly, claim in traditional trademark infringement, which requires that the suspected infringing use cause a
likelihood of consumer confusion.
 Secondly the cause of action, which is to assertion that a domain name 'dilutes' the value of the mark.

 Finally the claim proved is unfair competition, where the trademark is not federally registered.

Due to the above lengthy process an alternative to court system was introduced commonly known as ICANN. It
is an organization responsible to administer and manage the domain names. It also implemented the universal
procedure known as Universal Dispute Resolution Procedure (UDRP) which will govern specific disputes related to
the domain names. UDRP has been proved to be one of the most successful procedures which work as a model for
arbitration proceeding with slight modifications. The most common disputes with are decided by the UDRP are
cyber squatting and cyber piracy used by registrant of the domain name through illegal means. 4

ICANN Uniform Domain Name Dispute Resolution Policy

In 1999, a new Uniform Domain Name Dispute Resolution Policy (UDNDRP) was promulgated by ICANN. It
works under the close supervision by the U.S Department of Commerce. There is a great difference between the old
NSI policy and the UDNDRP. The ICANN policy forbids registration of the domain name if:

i. The domain name is identical or confusingly similar to another's mark.

ii. The entity registering the domain name has no legitimate right to it.

iii. The domain name was registered and used in bad faith.

The disputes under ICANN rules are referred to one or three member administrative panel that decides the
dispute promptly and publishes the decision. The administrative decision is final and binding on the registrar and
registries subject to ICANN control, but it can be superseded by Court actions. The proceeding is fast and
inexpensive, which can be conducted through e-mail with no personal appearances, and to require minimal
production of documents. The policy permits the arbitrators to rule that the complaint was brought in bad faith to
'reverse hijack' the domain name or to harass the domain name holder. Relief for such conduct is confined to a
declaration of abuse of the administrative proceeding.

In India, the domain name disputes are administered and managed by the Indian Domain Name Dispute
Resolution Policy (commonly as .INDRP Registry). The INDRP has its own set of rules and policies under which
the complaint is filed against the domain name infringement. The INDRP have their list of panel members to decide
the complaints. The procedure is simple and rapid and inexpensive under the INDRP rules and policy which more or
less works on the principles laid down the WIPO.

Conclusion

The growth of the internet has been explosive; the number of internet has increased tremendously since its
introduction. Due to which the crime rate is booming with double quickness and thus to protect the interest of the
millions of potential victims the protective laws have been made in the country Interestingly the redressal of
complaint is quick and cheaper. The decision by the panel is always unbiased and the confidentiality level is high
under such dispute resolution registry. It is the best way to solve the dispute within a less period of time without any
hassle of litigation. This domain name dispute resolution has been proved to be the most excellent way of
Alternative Dispute Resolution involving mediation and arbitration for domain name disputes. The issue concerning
protection of domain names came up before the Supreme Court of India in the case of Satyam Infoway.